Although I set out a fairly comprehensive list yesterday, a little more checking turned up an additional four cases, and Don Caster at All Deliberate Speed, has done more yeoman's work on this as well. In light of the two efforts, I have "updated" (and hopefully corrected) the list of Judge Roberts' labor and employment law decisions. First, I found four more cases that I did not find in my initial search. As with the overall list, on the most simplistic basis -- which side won -- the results were split.

For those one or two individuals (if there is anyone other than Don and I) who want to review all the decisions that Judge Roberts participated in (at least that I have found so far) to divine how he might decide labor and employment cases if confirmed as a Supreme Court Justice, the list of of 31 decisions follows.

To explain its makeup, in addition to adding the four new cases (and including the two that were contained in a separate post yesterday) I made some other adjustments based on Don's analysis. First, as he points out there were two FAA cases included which although involving employees are more administrative than employment cases, so I have removed those two. On the two that I listed as mixed, I have left Storer as such, since it was an OSHA appeal with two contested points, the employer wone one and the employee won one. I have moved the In Re England case involving the Chaplaincy Board to the Employer win group as opposed to mixed. (It is interesting that Roberts sided against the position of the Full Chaplaincy Group, which has been identified in the New York Times as a group promoting evangelical chaplains in the military, see Evangelicals Are a Growing Force in the Military Chaplain Corps, although that is a wholly different subject that I don't need to approach.)

So with the revised and recategorized list I have again done my very simplistic analysis based on the outcome as Employee (which also includes the position of labor) and Employer, and the now one case that remains, Mixed. See Don's post for a slightly different way of analyzing the opinions and his analysis.

At the point of over-emphasizing the obvious, the results reflect nothing in the way of a clue to Judge Roberts' views on labor and employment issues. That would take at least a careful reading of the opinions (which I certainly have not done) and even then it is quite possible that given the number and the fact that in most cases he was a participant, not an author, one might not be confident that one could predict how he would rule in any particular case. However, with that rather large caveat, it is an interesting split based just on the results (Employee - 12 Employer 18 Mixed 1). Perhaps more meaningfully, when the Court was reversing the court or agency below the results are (Employee 6 Employer 3). The two times his vote made a difference, i.e. he was to use an O'Connor reference, the "swing vote" one decision was for the employee and one was for the employer.

After all is said and done, perhaps the most that can be said about this data, but also what in all fairness should be said about it, is that Judge Roberts' judicial record with respect to labor and employment law is certainly within the judicial mainstream. And there is nothing in it, that should stand as a bar, or in my personal view as an impediment, to his confirmation.